"Can 20 million users be pinned for copyright infringement?"
In a word, yes. The long answer involves delving into how Pinterest itself operates. Copyright law is codified under 17 U.S.C. §§ 101-810 and grants artists and authors a certain bundle of rights, including the right to determine how and when their own work is copied, disseminated, and displayed.
Generally, linking is not copyright infringement. Ticketmaster Corp. v. Tickets.com, Inc., No. 99CV7654, 2000 WL 1887522, at *6 (C.D. Cal. Aug. 10, 2000). However, Pinterest is not an ordinary hyperlink to a source. When pinning, the user is essentially directing Pinterest to save the image at full-size (or at least an almost full-size 500-plus pixel copy) to Pinterest's servers. Pinterest uses this image for display throughout its interface, as well as for creating thumbnails.
Moreover, pins may violate a copyright owner's display and distribution rights. The Copyright Act also grants copyright owners the right to display a copy of their work publicly and to distribute copies of their work. In the digital age, "copies" are not limited to physical copies and include copies that may be displayed and distributed electronically. When a site stores an image on its own servers and transmits it to users, it is displaying and distributing the information in violation of a copyright holder's exclusive rights. Because Pinterest saves full-size images to their servers for transmission to its users, a copyright owner's display and distribution rights are violated.
"But, it's OK if there is attribution, right?"
There seems to be a widespread myth among pinners that if there is attribution (that is, that the pin either states where the image came from or links back to the original source), the user does not offend copyright laws. Most online articles about Pinterest's potential copyright problems contain at least one public comment questioning what the issue is. This myth may even have influenced Pinterest itself. In its welcome email to new users, Pinterest encourages users to "Try to . . . give credit. If you blog about an item you found on Pinterest, it's nice to credit your fellow pinners by linking back to the original pin." Interestingly, Pinterest directs users to give credit to other users, not copyright owners. Nevertheless, attribution or a link back to the source will not satisfy copyright law since copyright law is not about credit. If attribution was the only thing necessary to avoid liability, a person could post the entirety of Finding Nemo online merely by including a caption "by Disney."
Moreover, Pinterest links back to a source, not necessarily the source. Many pins link back to another pin, and the original source often is buried in a never-ending series of links. The more times a pin is repinned or reshared, the more difficult it is to find the original source. Though many pins do link back to the original source, just as many link back to a cloud of images or a Tumblr page, where there generally is no attribution of source. Others link back to a Google image search page, which may or may not link to the original source. So, even if attribution was sufficient to obviate copyright liability, Pinterest may not even do that.
"Well, photographers should thank Pinterest since it's free advertising"
It is irrelevant that pins often may drive more traffic to many photographers' websites and that photographers may profit from the unauthorized pins (the latter which may not be true—more on that later). Authors have the right to control how their work is disseminated, including whether it is disseminated at all.
Although there does not appear to be a mass movement to stop Pinterest, some photographers are starting to object. In response to the negative portrayal of his photo, professional photographer Sean Locke asked that a user take down one of his copyrighted photos from her board entitled "Ridiculous Pregnancy Pictures," a board intended to disparage photos of pregnant women. Sean Locke, More Thoughts on Pinterest, Sean Locke Photography, Feb. 6, 2012. In the future, photographers whose images are consistently being misused or depicted in an unsavory light may be pushed to take action.
In particular, stock photographers who license the use of their images may object to the use of their images beyond the scope of the license. Stock photographers are not content to sit idly as licensees stretch the bounds of agreements. For instance, Scholastic Corporation recently was sued for using photographic works in excess of the licensed print run, an indication that copyright owners are policing their licenses. Palmer Kane v. Scholastic Corp., No. 11 Civ. 7456(KBF), 2012 WL 295898 (S.D.N.Y. July 16, 2012).
In the past, authors of copyrighted works have been willing to sue when a licensee exceeds the scope of their license, including many cases involving then-new media. There is a split amongst courts on how to interpret how far a license extends when confronted with new media. In Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988), the Ninth Circuit answered the question of whether a license conferring the right to exhibit a film "by means of television" included the right to distribute videos of the film. In holding that the licensee exceeded the scope of the license, the court held that a license only included those rights expressly granted to the licensee; the copyright owner specifically retained all other rights, including uses not then known or contemplated by the parties.
Conversely, other courts have held that a license includes any use that "may reasonably be said to fall within the medium as described in the license." In Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150 (2d Cir. 1968), the court found that a license of film rights in a play, when television was a known technology, included television rights. The court held that the licensor, as an experienced businessperson, had reason to know of the new technology and had the burden of negotiating an exception.
Depending on its terms, a stock photography license that does not specifically mention Pinterest may or may not extend to copying that image to Pinterest. A company operating under license should not rely on the vagaries of court decisions and should be very careful not to exceed the scope of their license. Because a pin is a copy of the original work, a company may be liable for copyright infringement if it has not specifically been granted permission by the copyright owner to pin.
"Isn't it fair use?"
Maybe. The answer may turn on whether the user is an individual or a business. Section 107 of the Copyright Act lists four factors courts may consider in determining whether a use is fair:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
(2) the nature of the copyrighted wor
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
(4) the effect of the use upon the potential market for or value of the copyrighted work
The first factor may weigh in favor of a finding of fair use for individual pinners. The vast majority of pinners are individuals, pinning for personal use. One of the purposes of Pinterest is to help individuals catalog and organize ideas found on the Internet. In that respect, Pinterest is akin to a file folder with magazine clippings, or a visual version of a favorites folder. This justification may or may not be compelling to a court. While there are significant personal uses for users, Pinterest also is a social tool enabling pinners not just to collect images, but to share those images with others, a problem Napster users faced with the recording industry. Pinterest's welcome email defines Pinterest as "a community to share collections of things you love … Pinterest is as much about discovering new things as it is about sharing . . ." So, Pinterest may be more akin to a person color photocopying those magazine images and not only placing them in a personal file folder, but also distributing them to friends and thousands of others, making it unnecessary to purchase the original magazine.
It may even go so far as to be the same as taking the photographer's negative and creating thousands of images for distribution, since Pinterest is not just a lower-resolution photocopy, but a full-resolution image. In a new development, Pinterest recently allowed users to create up to three "private" boards, in which pins on these boards will not be shared with the Pinterest community. The ability to not share pins may ultimately hurt users' fair use argument since they were given the opportunity to use Pinterest only for their personal use and not share, and chose not to. It will be interesting to see how a court characterizes this issue and balances the "sharing" non-personal use with the legitimate "cataloging" personal use.
Business pinners may not have the benefit of this factor because these users are not using Pinterest to catalog or organize the items they may have for sale. Instead, businesses are using Pinterest to drive traffic back to their site and hopefully encourage a person to buy that fabulous designer item. The purpose of the use is commercial, and this factor weighs against business users.
The second factor weighs in favor of photographers. Photographs, like other artistic works, are protected by copyright law. Fair use analysis operates on a spectrum. Purely creative works are extended more protection than works that convey purely factual information. The theory is that facts cannot be copyrighted and should be available to all. With Pinterest, many of the images are created solely as a means of creative expression and are not intended to convey factual information. Because a pin often copies a purely creative work, this factor weighs against a finding of fair use.
Third, the substantiality of the copying in Pinterest weighs against pinners. Theoretically, if Pinterest only used thumbnails, it could avoid liability in the same way Google avoided liability for its Google Image Search thumbnails in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007). However, Pinterest and its users run into trouble with the copying of full-size images. Unlike Pinterest, Google does not save a collection of full-size images. Rather, Google's search engine tells a user's computer where to locate the original image stored on the source server. The image is transmitted directly from the source server and is displayed through a Google frame. When a copyright owner removes an image or requests that someone remove an infringing image, the image also is removed from Google's search result. With Pinterest, because a full-size copy is saved to its servers, removing the host image does not remove the image from Pinterest, hampering a copyright owner's ability to stop the distribution of his or her work. In other words, a substantial portion of the work is copied to Pinterest's servers, distributed to users.
Finally, the effect on the market could be considerable. Pins could compete directly with the original image, and Pinterest actually may divert traffic away from photographers. A thumbnail entices users to click through for the full-size image, whereas a full-resolution image does not. If a user can see the image at full quality via Pinterest, there is no need for that user to view it again on the host photographe'r site. On balance, this fourth factor may go either way. Until an empirical study is done demonstrating how Pinterest impacts site traffic, it is unclear the extent to which Pinterest impacts the market for copyrighted works.
There is an argument that the use is commentary or transformative use, but this argument probably will be unavailing. When pinning, Pinterest instructs users to "[d]escribe your pin" by including a caption. However, many captions merely describe the pin itself (e.g., "cupcakes"). Even if commentary, it may not eliminate problems with other factors, including whether the full image is necessary to make adequate commentary under the third factor. Those that don't describe the pin probably are too superficial to qualify as commentary in the spirit of fair use (e.g., "Cute!" or "Yum!"). For the same reasons, these shallow captions probably are not sufficient to constitute transformative use such as a meme might be. A "meme" in Internet culture refers to a picture with a pithy caption. See e.g., I Can Has Cheezburger?, Lawyer Dog, (last visited Aug. 30, 2012).
Although individual users have an argument that their personal use constitutes fair use, businesses should be particularly wary of pinning images without appropriate licenses, since such use is purely commercial in nature. Further, business pinners should be careful when encouraging others to pin (such as the Wall Street Journal), as it may constitute contributory infringement if the businesses are found to (1) know of the infringing activity, and (2) induce, cause, or materially contribute to that conduct. Urging others to pin may be inducing them to infringe copyrights. Without a clear answer as to whether pinning is fair use, businesses should be mindful when advocating pinning.
"Isn't Pinterest the same as myVidster, a social-media bookmarking site that also allows users to view the entirety of a copyrighted work?"
Unfortunately for Pinterest, no. At a high level, myVidster is similar to Pinterest. It is an online social-networking service that enables users with similar tastes to point one another to online materials by "bookmarking" materials through its website, and through the bookmarks, a user can view an entire copyrighted video. However, in terms of programming, myVidster operates more similarly to Google. MyVidster does not save a copy of the video to its servers; instead, it streams videos through its site by linking directly to the plaintiff copyright owners' servers. Although expressly declining to apply the test used in the Google case, Judge Posner recently ruled that because the social-bookmarking service made no copy on its servers, neither the site nor its users were liable for copyright infringement. Flava Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826 (7th Cir. Aug. 2, 2012). A user instructs Google to display a full-size image on myVidster to save a path to a full video, but no copy of the original copyrighted work is made. A Pinner, on the other hand, instructs Pinterest to save a copy of the image, in contravention of copyright law.
Proceed with Caution
For readers with personal Pinterest accounts, it may be hasty to delete all those pins. The legitimate personal use may be fair and may outweigh the non-personal "sharing" aspect of Pinterest, particularly if users take advantage of the option to create private boards. On the other hand, business Pinners should be cautious when creating Pinterest accounts and encouraging others to pin. Pinning by businesses is not only commercial use, but it also may expose business users to problems with their photography licensing agreements. Until a court settles the matter, the easiest way to avoid copyright problems is to pin only your own pictures or pictures that you are certain the author has given permission to pin. Pin with care so as not to get pricked.
Keywords: litigation, intellectual property, Pinterest, pinners, copyright infringement, fair use, social media, photography, Google